|
Exhibit
10.1
INSYS THERAPEUTICS,
INC.
INDEMNITY
AGREEMENT
T HIS I
NDEMNITY A GREEMENT (this “
Agreement ”) dated as of
, 20__, is made by and between I NSYS T
HERAPEUTICS , I NC ., a Delaware
corporation (the “ Company ”), and
(“ Indemnitee ”).
R
ECITALS
A. The Company desires
to attract and retain the services of highly qualified individuals
as directors, officers, employees and agents.
B. The Company’s
Amended and Restated Bylaws (the “ Bylaws ”)
require that the Company indemnify its directors and officers, and
empowers the Company to indemnify its employees and agents, as
authorized by the Delaware General Corporation Law, as amended (the
“ Code ”), under which the Company is organized
and such Bylaws expressly provide that the indemnification provided
therein is not exclusive and contemplates that the Company may
enter into separate agreements with its directors, officers and
other persons to set forth specific indemnification
provisions.
C. Indemnitee does not
regard the protection currently provided by applicable law, the
Company’s governing documents and available insurance as
adequate under the present circumstances, and the Company has
determined that Indemnitee and other directors, officers, employees
and agents of the Company may not be willing to serve or continue
to serve in such capacities without additional
protection.
D. The Company desires
and has requested Indemnitee to serve or continue to serve as a
director, officer, employee or agent of the Company, as the case
may be, and has proferred this Agreement to Indemnitee as an
additional inducement to serve in such capacity.
E. Indemnitee is
willing to serve, or to continue to serve, as a director, officer,
employee or agent of the Company, as the case may be, if Indemnitee
is furnished the indemnity provided for herein by the
Company.
A
GREEMENT
N OW T
HEREFORE , in consideration of the mutual
covenants and agreements set forth herein, the parties hereto,
intending to be legally bound, hereby agree as follows:
1.
Definitions.
(a) Agent . For
purposes of this Agreement, the term “agent” of the
Company means any person who: (i) is or was a director,
officer, employee or other fiduciary of the Company, a subsidiary
of the Company or an employee benefit plan of the Company or a
subsidiary of the Company; or (ii) is or was serving at the
request or for the convenience of, or
representing the interests
of, the Company or a subsidiary of the Company, as a director,
officer, employee or other fiduciary of a foreign or domestic
corporation, partnership, joint venture, trust or other
enterprise.
(b) Expenses .
For purposes of this Agreement, the term “expenses”
shall be broadly construed and shall include, without limitation,
all direct and indirect costs of any type or nature whatsoever
(including, without limitation, all attorneys’, witness, or
other professional fees and related disbursements, premiums,
security for and other costs relating to any bonds and other
out-of-pocket costs of whatever nature), actually and reasonably
incurred by Indemnitee in connection with the investigation,
defense or appeal of a proceeding or establishing or enforcing a
right to indemnification under this Agreement, the Code or
otherwise, and amounts paid in settlement by or on behalf of
Indemnitee, but shall not include any judgments, fines or penalties
actually levied against Indemnitee for such individual’s
violations of law. The term “expenses” shall also
include reasonable compensation for time spent by Indemnitee for
which he is not compensated by the Company or any subsidiary or
third party (i) for any period during which Indemnitee is not
an agent, in the employment of, or providing services for
compensation to, the Company or any subsidiary; and (ii) if
the rate of compensation and estimated time involved is approved by
the directors of the Company who are not parties to any action with
respect to which expenses are incurred, for Indemnitee while an
agent of, employed by, or providing services for compensation to,
the Company or any subsidiary.
(c) Proceeding
. For purposes of this Agreement, the term “proceeding”
shall be broadly construed and shall include, without limitation,
any threatened, pending, or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or completed
proceeding, whether brought in the right of the Company or
otherwise and whether of a civil, criminal, administrative or
investigative nature, and whether formal or informal in any case,
in which Indemnitee was, is or will be involved as a party or
otherwise by reason of: (i) the fact that Indemnitee is or was
a director or officer of the Company; (ii) the fact that any
action taken by Indemnitee or of any action on Indemnitee’s
part while acting as director, officer, employee or agent of the
Company; or (iii) the fact that Indemnitee is or was serving
at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, and in any such case
described above, whether or not serving in any such capacity at the
time any liability or expense is incurred for which
indemnification, reimbursement, or advancement of expenses may be
provided under this Agreement.
(d) Subsidiary
. For purposes of this Agreement, the term “subsidiary”
means any corporation or limited liability company of which more
than 20% of the outstanding voting securities or equity interests
are owned, directly or indirectly, by the Company and one or more
of its subsidiaries, and any other corporation, limited liability
company, partnership, joint venture, trust, employee benefit plan
or other enterprise of which Indemnitee is or was serving at the
request of the Company as a director, officer, employee, agent or
fiduciary.
(e) Independent
Counsel . For purposes of this Agreement, the term
“independent counsel” means a law firm, or a partner
(or, if applicable, member) of such a law firm, that is experienced
in matters of corporation law and neither presently is, nor in the
past five (5) years has been, retained to represent:
(i) the Company or Indemnitee in any matter
material to either such
party, or (ii) any other party to the proceeding giving rise
to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term “independent counsel” shall not
include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of
interest in representing either the Company or Indemnitee in an
action to determine Indemnitee’s rights under this
Agreement.
2.
Consideration. The Company acknowledges that it has entered
into this Agreement and assumes the obligations imposed on it
hereby, in addition to and separate from its obligations to
Indemnitee under the Bylaws, to induce Indemnitee to serve, or
continue to serve, as a director, officer, employee or agent of the
Company, and the Company acknowledges that Indemnitee is relying
upon this Agreement in serving as a director, officer, employee or
agent of the Company.
3.
Indemnification.
(a) Indemnification
in Third Party Proceedings . Subject to Section 10 below,
the Company shall indemnify Indemnitee, if Indemnitee is a party to
or threatened to be made a party to or otherwise involved in any
proceeding, for any and all expenses, actually and reasonably
incurred by Indemnitee in connection with the investigation,
defense, settlement or appeal of such proceeding.
(b) Indemnification
in Derivative Actions and Direct Actions by the Company .
Subject to Section 10 below, the Company shall indemnify
Indemnitee, if Indemnitee is a party to or threatened to be made a
party to or otherwise involved in any proceeding by or in the right
of the Company to procure a judgment in its favor, against any and
all expenses actually and reasonably incurred by Indemnitee in
connection with the investigation, defense, settlement, or appeal
of such proceedings.
4. Indemnification
of Expenses of Successful Party . Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in defense of any proceeding
or in defense of any claim, issue or matter therein, including the
dismissal of any action without prejudice, the Company shall
indemnify Indemnitee against all expenses actually and reasonably
incurred in connection with the investigation, defense or appeal of
such proceeding.
5. Partial
Indemnification . If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a
portion of any expenses actually and reasonably incurred by
Indemnitee in the investigation, defense, settlement or appeal of a
proceeding, but is precluded by applicable law or the specific
terms of this Agreement to indemnification for the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for
the portion thereof to which Indemnitee is entitled.
6. Advancement of
Expenses . To the extent not prohibited by law, the Company
shall advance the expenses incurred by Indemnitee in connection
with any proceeding, and such advancement shall be made within
twenty (20) days after the receipt by the Company of a
statement or statements requesting such advances (which shall
include invoices received by Indemnitee in connection with such
expenses but, in the case of invoices in connection with
legal
services, any references to legal work
performed or to expenditures made that would cause Indemnitee to
waive any privilege accorded by applicable law shall not be
included with the invoice) and upon request of the Company, an
undertaking to repay the advancement of expenses if and to the
extent that it is ultimately determined by a court of competent
jurisdiction in a final judgment, not subject to appeal, that
Indemnitee is not entitled to be indemnified by the Company.
Advances shall be unsecured, interest free and without regard to
Indemnitee’s ability to repay the expenses. Advances shall
include any and all expenses actually and reasonably incurred by
Indemnitee pursuing an action to enforce Indemnitee’s right
to indemnification under this Agreement, or otherwise and this
right of advancement, including expenses incurred preparing and
forwarding statements to the Company to support the advances
claimed. Indemnitee acknowledges that the execution and delivery of
this Agreement shall constitute an undertaking providing that
Indemnitee shall, to the fullest extent required by law, repay the
advance if and to the extent that it is ultimately determined by a
court of competent jurisdiction in a final judgment, not subject to
appeal, that Indemnitee is not entitled to be indemnified by the
Company. The right to advances under this Section shall continue
until final disposition of any proceeding, including any appeal
therein. This Section 6 shall not apply to any claim made by
Indemnitee for which indemnity is excluded pursuant to
Section 10(b).
7. Notice
and
|
